Employee misbehavior cancels right to protest

Delivering a petition to the boss is protected activity under the National Labor Relations Act, but lying to a security officer to gain access to a secured area is not. The NLRB has held that the employee “engaged in sufficiently egregious misconduct to forfeit the Act’s protection.” KHRG Employer, LLC, 366 NLRB No. 22 (02/28/2018) [PDF]

Evan Demma was a server at the employer's hotel, and a member of a union organizing committee. He had quite a history of organizing protests and demonstrations, and presenting petitions to management. Demma was never disciplined for any of that.

October 9, 2015 was different. Demma led a delegation of 20 people, only six of whom were employees, to deliver a new petition to his manager whose office was in a secured access area. When confronted by a security guard, Demma falsely said that everyone in the delegation was an employee with the right to deliver the petition, and the guard let them all in. While Demma was in the manager's office, some non-employees were left unattended in the secure area which contained cash, corporate checks, personnel files, guests’ contracts, financial reporting papers, and employees' personal items.

As the NLRB put it:

"While the delegation’s action was not disruptive, the dispositive point is that it advanced to the secure area only because Demma misrepresented to the security guard that the delegation consisted only of employees and the delegation was able to enter the secure area only because Demma used the passcode to provide the group unauthorized access." "This breach of security cannot be dismissed as an impulsive act. It was a predetermined course of action."

Applying the standards in Consumers Power Co., 282 NLRB 130, 132 (1986), the Board held that "Demma engaged in sufficiently egregious misconduct to forfeit the Act’s protection."

Consumers Power Co involves a balancing test, and the Board had no difficulty striking the balance in favor of the employer.